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Cherokee girl's case goes to Okla. Supreme Court

FILE - This July 21, 2013 file photo provided by Shannon Jones, attorney for biological father Dusten Brown, shows Brown with his daughter, Veronica. The Oklahoma Supreme Court granted an emergency stay to keep the 3-year-old Cherokee girl with her biological father and plans to hear arguments from his lawyers and those of the girl's adoptive parents later Tuesday, Sept. 3, 2013. Matt and Melanie Capobianco, a South Carolina couple, have been trying to adopt Veronica since she was born. (AP Photo/Courtesy Shannon Jones, File)

OKLAHOMA CITY (AP) — A custody fight over a 3-year-old Cherokee girl shifted to Oklahoma's highest court Tuesday as lawyers gathered to discuss who should raise the child: a South Carolina couple who have attempted to adopt her since birth or the girl's biological father, who claims a federal law requires that she be raised in a Native American home.

Oklahoma's Supreme Court said earlier on Tuesday that it had granted an emergency stay Friday that keeps young Veronica with her father, Dusten Brown, and members of his family. Matt and Melanie Capobianco, of Charleston, S.C., say they are the rightful parents and have a South Carolina court order to prove it.

Brown and the Capobiancos were present at the Oklahoma Supreme Court chambers for nearly 90 minutes Tuesday but left without comment. Family court proceedings are typically held in private, but courts have also ordered all parties not to talk about the case publicly. Two Oklahoma Highway Patrol troopers stood guard outside the hearing as it began. After the hearing concluded, Brown left the court with his wife, Robin Brown, about five minutes before the Capobiancos.

A court referee who conducted the hearing is expected to decide whether the full Oklahoma Supreme Court should hear the case.

Brown has argued that Oklahoma or Cherokee Nation courts should have jurisdiction in the case, not South Carolina, since Veronica has lived in Oklahoma since 2011.

Veronica's birth mother was pregnant when she put the girl up for adoption, and the Capobiancos had been lined up to receive custody since 2009. But Brown and his family claimed the Indian Child Welfare Act mandated that the child be raised within the Cherokee Nation, and he won custody when the girl was 2.

The Indian Child Welfare Act was passed in 1978 with the intent of reducing the high rates of Native American children being adopted by non-Native American families. A South Carolina court cited the law when awarding Veronica to Brown in 2011, but the U.S. Supreme Court said this summer the law did not apply in Brown's case because he had been absent from the child's life.

A South Carolina family court judge then ruled in July that custody be awarded to the Capobiancos and ordered Brown to hand Veronica over. Brown refused, and South Carolina authorities charged Brown with custodial interference after he failed to show up to a court-ordered meeting.

But the biological father has argued that since Veronica has lived in Oklahoma for nearly two years, it would be particularly damaging to the girl to remove her to South Carolina.

The Capobiancos counter that South Carolina courts should determine the girl's future because that's where the girl was when the custody fight started. Online court records show that the Capobiancos have filed a motion to vacate the stay issued Friday.

A call to Brown's lawyer was not returned Tuesday, and a spokeswoman for the Capobiancos said she could not comment because of the gag order.

The dispute has raised questions about jurisdictions, tribal sovereignty and the federal law meant to help keep Native American tribes together. Veronica's birth mother is not Native American.